Mintz v. Town of Murphy

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69 S.E.2d 849 (1952)

235 N.C. 304


No. 24.

Supreme Court of North Carolina.

March 26, 1952.

*855 F. O. Christopher, O. L. Anderson, Murphy, T. M. Jenkins, Robbinsville, for plaintiff appellant.

Edwards & Leatherwood, Bryson City, John M. Queen, Waynesville, for defendant appellee.

*856 WINBORNE, Justice.

The sole question here is this: Considering the evidence shown in the record on this appeal in the light most favorable to plaintiff, is there sufficient evidence to take the case to the jury as against the defendant Town of Murphy? The trial court did not consider it sufficient for this purpose. And in this ruling error is not made to appear.

In an action for recovery of damages for injury resulting from actionable negligence of defendant, plaintiff must show: (1) That there has been a failure on the part of defendant to exercise proper care in the performance of some legal duty which the defendant owed the plaintiff under the circumstances in which they were placed. And (2) that such negligent breach of duty was the proximate cause of the injury, a cause that produced the result in continuous sequence, and without which it would not have occurred, and one from which a man of ordinary prudence could have foreseen that such result was probable under the facts as they existed. Whitt v. Rand, 187 N.C. 805, 123 S.E. 84; Murray v. Atlantic Coast Line R. Co., 218 N.C. 392, 11 S.E.2d 326; Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661; Luttrell v. Carolina Mineral Co., 220 N.C. 782, 18 S.E.2d 412; Mitchell v. Melts, 220 N.C. 793, 18 S.E.2d 406; Harris v. Montgomery Ward & Co., 230 N.C. 485, 53 S.E.2d 536; McIntyre v. Monarch Elevator & Machine Co., 230 N.C. 539, 54 S.E.2d 45; Spivey v. Newman, 232 N.C. 281, 59 S.E.2d 844; Baker v. Atlantic Coast Line R. Co., 232 N.C. 523, 61 S.E.2d 621.

If the evidence fails to establish either one of the essential elements of actionable negligence, the judgment of nonsuit is proper. Luttrell v. Carolina Mineral Co., supra; Mitchell v. Melts, supra; Thomas v. Thurston Motor Lines, 230 N.C. 122, 52 S.E.2d 377.

And the principle prevails in this State that what is negligence is a question of law, and when the facts are admitted or established, the court must say whether it does or does not exist. "This rule extends and applies not only to the question of negligent breach of duty, but also to the feature of proximate cause." Hoke, J., in Hicks v. Naomi Falls Mfg. Co., 138 N.C. 319, 50 S.E. 703, 705; Russell v. Carolina Cent. R. R. Co., 118 N.C. 1098, 24 S.E. 512; Lineberry v. North Carolina R. Co., 187 N.C. 786, 123 S.E. 1; Clinard v. Clinard Electric Co., 192 N.C. 736, 136 S.E. 1; Murray v. Atlantic Coast Line R. Co., supra; Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239; Luttrell v. Carolina Mineral Co., supra; Baker v. Atlantic Coast Line R. Co., supra.

In Lineberry v. North Carolina R. Co., supra [187 N.C. 786, 123 S.E. 4], in opinion by Clarkson, J., it is said: "It is well settled that, where the facts are all admitted, and only one inference may be drawn from them, the court will declare whether an act was the proximate cause of the injury or not." See also Nichols v. Goldston, 228 N.C. 514, 46 S.E.2d 320; Baker v. Atlantic Coast Line R. Co., supra.

Furthermore, it is proper in negligence cases to sustain a demurrer to the evidence and enter judgment as of nonsuit under provision of G.S. § 1-183, "1. When all the evidence, taken in the most favorable light for the plaintiff, fails to show any actionable negligence on the part of the defendant. * * * 2. When it clearly appears from the evidence that the injury complained of was independently and proximately produced by the wrongful act, neglect, or default of an outside agency or responsible third person. * * *" Stacy, C. J., in Smith v. Sink, 211 N.C. 725, 192 S.E. 108, and cases cited in respect to each principle. See also Boyd v. Seaboard Air Line R. Co., 200 N.C. 324, 156 S.E. 507; Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88; Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808; Murray v. Atlantic Coast Line R. Co., supra; Luttrell v. Carolina Mineral Co., supra; Riggs v. Akers Motor Lines, 233 N.C. 160, 63 S.E.2d 197.

In Smith v. Sink, supra, it is also said: "We had occasion to examine anew this doctrine of insulating the conduct of one, even when it amounts to passive negligence, by the intervention of the active negligence of an independent agency or *857 third party, as applied to variant fact situations, in the recent cases of Beach v. Patton [208 N.C. 134, 179 S.E. 446]," and others cited. Then, continuing, "These decisions, and others, are in full support and approval of Mr. Wharton's statement in his valuable work on Negligence (section 134): `Supposing that if it had not been for the intervention of a responsible third party the defendant's negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff? This question must be answered in the negative, for the general reason that causal connection between negligence and damage is broken by the interposition of independent responsible human action. I am negligent on a particular subject-matter. Another person, moving independently, comes in, and either negligently or maliciously so acts as to make my negligence injurious to a third person. If so, the person so intervening acts as a nonconductor, and insulates my negligence, so that I cannot be sued for the mischief which the person so intervening directly produces. He is the one who is liable to the person injured.'" Then there follows, to like effect, a quotation from Milwaukee & St. P. R. Co., v. Kellogg, 94 U.S. 469, 24 L. Ed. 256. See also Butner v. Spease, supra; Riggs v. Akers Motor Lines, supra.

A municipal corporation, engaged in the business of supplying electricity for private advantage and emolument is, as to this, regarded as a private corporation, and, in such capacity is liable to persons injured by the actionable negligence of its servants, agents and employees. Fisher v. New Bern, 140 N.C. 506, 53 S.E. 342, 5 L.R.A.,N.S., 542; Harrington v. Commissioners of Town of Wadesboro, 153 N.C. 437, 69 S.E. 399; Rice v. Lumberton, N.C., 69 S.E.2d 543.

And this Court declared in Helms v. Citizens' Light & Power Co., 192 N.C. 784, 136 S.E. 9, 10, that: "Electric companies are required to use reasonable care in the construction and maintenance of their lines and apparatus. The degree of care which will satisfy this requirement varies, of course, with the circumstances, but it must always be commensurate with the dangers involved; and, where the wires maintained by a company are designed to carry a strong and powerful current of electricity, the law imposes upon the company the duty of exercising the utmost care and prudence consistent with the practical operation of its business, to avoid injury to those likely to come in contact with its wires."

And in Small v. Southern Public Utilities Co., 200 N.C. 719, 158 S.E. 385, 386, it is said that, "Due to the deadly and latently dangerous character of electricity, the degree of care required of persons, corporate or individual, furnishing electric light and power to others for private gain, has been variously stated." Then after reciting such expressions, the Court said: "In approving these formulae as to the degree of care required in such cases, it is not to be supposed that there is a varying standard of duty by which responsibility for negligence is to be determined. * * The standard is always the rule of the prudent man, or the care which a prudent man ought to use under like circumstances. What such reasonable care is, of course, varies in different cases and in the presence of different conditions."

Moreover, we find it stated in 18 Am.Jur. 491-2, subject Electricity, Sec. 97, "That the duty of providing insulation should be limited to those points or places where there is reason to apprehend that persons may come in contact with the wires, is only reasonable. Therefore, the law does not compel companies to insulate * * * their wires everywhere, but only at places where people may legitimately go for work, business, or pleasure, that is, where they may be reasonably expected to go. The same rule applies with equal, if not greater, force in regard to placing warning signs." This principle is recognized by this Court in Ellis v. Carolina Power & Light Co., 193 N.C. 357, 137 S.E. 163. See also 29 C.J.S., Electricity, § 42, p. 582.

The mere maintenance of high tension transmission line is not wrongful, and in order to hold the owner negligent, when an injury occurs, he must be shown to have omitted some precaution which he *858 should have taken. 18 Am.Jur. 490Electricity, Sec. 96.

On the other hand, the law imposes upon a person sui juris the obligation to use ordinary care for his own protection, and the degree of such care should be commensurate with the danger to be avoided. Since the danger from uninsulated or otherwise defective wires is proportionate to the amount of electricity so transmitted, contact with such wires should be avoided where their existence is known. Where a person seeing such a wire knows that it is, or may be highly dangerous, it is his duty to avoid coming in contact therewith. See 18 Am.Jur. 471, Electricity 76. See also Rice v. Lumberton, ante.

Furthermore, it may be conceded, for purposes of this appeal, that the State Highway and Public Works Commission is vested with authority to control the uses to which the easements acquired by the State for public highway purposes, may be put, Hildebrand v. Southern Bell Telephone & Telegraph Co., 219 N.C. 402, 14 S.E.2d 252; and that in the exercise of such authority the Commission had the right to call upon the Town of Murphy to remove so much of its electric transmission line as interfered with the re-location and improvement of portions of Highway No. 64. And the evidence discloses that the Town of Murphy was co-operating with the request of the Commission in this respect.

And applying the principles of law here stated to the evidence offered by plaintiff, such evidence fails to make out a case of actionable negligence. If it should be conceded that the evidence tends to show that defendant failed to maintain its transmission line in accordance with its legal duty, the evidence fails to show that such failure was a proximate cause of the injury to plaintiff. On the other hand, it clearly appears from the evidence that the injury of which plaintiff complains was "independently and proximately produced by the wrongful act, neglect, or default of an outside agency or responsible third person." There would have been no injury to plaintiff but for the intervening wrongful act, neglect or default of those in control of and operating the derrick, over which defendant had no control, and of which defendant had no knowledge.

The judgment below is


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